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United States v. Dupree

August 4, 2009


The opinion of the court was delivered by: Rufe, J.



The Indictment in the above-captioned case charges Defendant Maurice Dupree ("Defendant" or "Dupree") with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant filed a Motion to Suppress all physical evidence recovered in connection with his arrest, and in particular, the firearm at issue in the charged offense.*fn1

After considering Defendant's Motion and the Government's Response in opposition,*fn2 and after an evidentiary hearing and oral argument held on the same,*fn3 the Court made findings of fact and conclusions of law and granted Defendant's Motion in a Memorandum and Order filed May 27, 2009.*fn4 Presently before the Court is the Government's Motion for Reconsideration of that ruling,*fn5 and Defendant's Response in Opposition.*fn6 The matter is ready for disposition.


Motions for reconsideration of a final judgment or interlocutory order are provided for in Local Rule of Civil Procedure 7.1(g),*fn7 which, in turn, is made "fully applicable in all criminal proceedings" in this District by Local Rule of Criminal Procedure 1.2.*fn8 "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence."*fn9 Thus, to prevail on such a motion, its proponent must show "at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [rendered the challenged decision]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice."*fn10 The Government bases its motion on the final ground alone, arguing that the decision in question rested on a clear error of law.


The Court incorporates and presumes familiarity with the Findings of Fact it made in the Memorandum and Order of May 27, 2009. The Court recites only those facts necessary for an understanding of this decision.

On January 16, 2008, responding to a vague physical description of a suspect broadcast in a flash radio communication, Philadelphia Police Officers Brian Mabry ("Mabry") and Steven Shippen ("Shippen") determined to approach Defendant, Maurice Ray Dupree ("Dupree"), whom they observed riding a bicycle approximately seven blocks away from the location described in the flash report. Shippen drove the officers' patrol car to a position alongside Dupree, and stopped. Mabry immediately exited the car and approached Dupree, who was still riding the bicycle. Quickly drawing alongside Dupree, and without first speaking, Mabry grabbed Dupree with both hands, one hand holding Dupree's right elbow, the other gripping Dupree's right upper arm. While gripping Dupree's arm, Mabry said "Can I talk to you for a minute?" Dupree was still astride the bicycle. Shippen had emerged from the patrol car and approached Dupree as well. By grabbing him, Mabry stopped Dupree's movement. Mabry testified that, "at that point he was stopped for investigation."*fn11 To that point in time, the officers had not observed Dupree with a weapon, and they had not observed him engaging in any sort of criminal activity. Mabry held and stopped Dupree for approximately two seconds before Dupree twisted away from Mabry, breaking Mabry's grip on him, and jumped off the bicycle, sliding it into Mabry's legs. Dupree ran eastbound then southbound through the area, away from the officers, who chased him and arrested him shortly thereafter. During the chase, the officers witnessed Dupree drop the firearm at issue in this case.

As noted, the Government does not challenge these findings. On the basis of these findings, the Court ruled that Dupree was "seized" for purposes of the Fourth Amendment when Officer Mabry grabbed him by the arm with both hands, stopping his movement, albeit for approximately two seconds. The Court further ruled that the flash report's description of the suspect was too vague to provide a proper basis to stop or seize Dupree for investigative purposes, and that no other proper basis for such a stop existed, such that the seizure was not justified. Ruling that the illegal seizure led directly to Dupree's flight and discarding of the firearm in question, the Court suppressed the firearm under the "fruit of the poisonous tree" and "forced abandonment" doctrines.*fn12

In the instant Motion, the Government acknowledges that at the moment Mabry grabbed him, "the police had an insufficient basis to stop and frisk Dupree, and that any seizure of his person or possessions at that time would be unlawful."*fn13 The Government contends, however, that it was a clear error of law for the Court to rule that Dupree was seized when Mabry grabbed him. The Government urges the Court to vacate the challenged order and enter an order denying Dupree's Motion to Suppress Physical Evidence.

In determining that Dupree was seized when Mabry grabbed him, the Court relied on the case law of the Third Circuit Court of Appeals. In particular, in the case United States v. Brown, the Third Circuit explained that a "seizure" occurs for Fourth Amendment purposes when there is "either (a) 'a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful,' or (b) submission to a 'show of authority.'"*fn14 "Put another way," the Brown court added, "when a seizure is effected by even 'the slightest application of physical force,' it is immaterial whether the suspect yields to that force."*fn15 In the passages of Brown just noted, the Court of Appeals expressly interpreted and relied upon the decision of the United States Supreme Court in California v. Hodari D.*fn16 In Hodari D., a case involving not physical force but a show of authority prior to a citizen's flight from police, "the Court held that a seizure does not occur when the subject does not yield to a show of authority."*fn17

Yet, the Government argues the Court should disregard as irrelevant dictum the language from Brown explicitly defining "seizure," quoted above, and should instead embrace and apply a contrary interpretation of Hodari D. adopted by federal courts in other circuits.*fn18 For example, two cases cited by the Government show that different federal courts of appeals have read Hodari D. to stand for the proposition that it is not a seizure for Fourth Amendment purposes "if an officer applies physical force in an attempt to detain a suspect but such force is ineffective."*fn19

The Government seeks to relegate the Brown language noted previously to the status of mere dictum, not binding on this Court. It notes, accurately, that Brown was a case involving a putative seizure resulting not from physical contact between police and a citizen, but from a show of police authority. As a result, the Government contends that Brown is inapposite and not useful as a source of law for district courts considering cases involving issues of seizure through physical force, such as this one. But the Government's dictum ...

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